The Environmental Review Tribunal (ERT) recently dismissed a renewable energy approval appeal concerning the Port Dover and Nanticoke Wind Project (Project). In Haldimand Wind Concerns v Director, Ministry of the Environment, the ERT found that the appellants did not show that the project will cause serious and irreversible harm to plant life, animal life or the natural environment. However, the ERT also recommended that the appropriate agencies conduct further research on the impact of wind farms on certain wildlife.

The appeal challenged the Minister of the Environment’s (MOE) approval of the planned 104.4 megawatt wind generation farm in the Counties of Norfolk and Haldimand. The MOE issued the Project’s Renewable Energy Approval (REA) on July 17, 2012.

The appellants and one expert witness argued that the assessments conducted by the REA holder were inadequate and that serious and irreversible harm would befall the tundra swans and turkey vultures as a result of the Project.

The ERT clearly stated that it requires evidence of the impact of a project and that a challenge of the testing approach in the absence of evidence is insufficient on an appeal, which echoes its recent ruling on the South Kent Wind Project (see our post on that decision here). Although the ERT dismissed the appeal because the appellants did not demonstrate that the Project would cause serious and irreversible harm, it also found that significant concerns were raised about studies conducted and ongoing monitoring of the Project.

The ERT found that there is inadequate and contradictory evidence on the cumulative impact of wind turbine projects on tundra swans in the area and recommended that the “appropriate agencies” research these effects. The ERT also found that the MOE’s decision to not require the REA holder to report more extensive pre- and post-construction information on habitat impact was “regrettable”. It therefore recommended that the REA be amended to require more data collection, especially during the migration time of the tundra swan.

The appeal is the ERT’s second major decision of a renewable energy approval appeal since Erickson v Director, Ministry of Environment (see our post on that decision here) and indicates that it may not hesitate to recommend changes to an REA where it deems appropriate.